How the bureau is playing fast and loose in its fight against domestic terrorism.

By J.M. BergerJ.M. Berger is co-author of ISIS: The State of Terror and is a nonresident fellow at the Brookings Institution.

September 7, 2012

There’s an American trope we all know and love — the loose-cannon cop who doesn’t play by the rules. Whether it’s Dirty Harry, Raylan Givens, or Jack Bauer, the story is as reassuring as it is trite. There’s someone out there who can get the job done and doesn’t worry about coloring inside the lines.

In counterterrorism circles, that figure is known as the professional informant. And the truth is far more complicated and troubling than the comforting fiction. Professional informants are paid by law enforcement to infiltrate criminal or extremist circles, sometimes on a full-time basis. Yet they’re not considered employees of the government and are not subject to the same rules. From warrantless searches to sex with targets to constructing terrorist plots out of thin air, the informant problem is not new, but this powerful investigative tool is under pressure like never before after being exposed to the harsh light of day in a series of recent terrorism trials. Growing media scrutiny and a pending civil lawsuit in California are aggressively challenging whether the benefits of aggressive informant tactics outweigh the risk to civil liberties and are raising troubling questions about the legitimacy of terrorism investigations.

The risks to recruiting informants from within criminal organizations have been amply documented over the years — but usually with mobsters, not terrorists. Law enforcement can get too cozy with informants inside criminal organizations, leading to corruption and other complications, as in the cases of Whitey Bulger and Gregory Scarpa.

Other challenges are less obvious. Consider the professional informant, who is not primarily employed by a criminal enterprise but by a law enforcement agency. In a number of cases, these informants are chosen because they fit a profile — such as "wealthy Muslim" or "pretty girl" — and not because they have any prior connection to the targets of the investigation.

Because they are not insiders but infiltrators, these informants exist in a netherworld somewhere between snitch and cop. But while agents are rigorously trained about what’s legal, ethical, and fair, informants are often just given a stipend and sent to work. In an ideal world, that work is supposed to be limited in scope.

"Usually what the informant provides is an opportunity to introduce an undercover operative," says Mike German, a former FBI undercover agent who now works for the American Civil Liberties Union (ACLU). "And then you push the informant out of the case because you want the FBI agent there. He understands the law. He or she would be much more sensitive to any kind of privilege issues or sensitive techniques."

In a significant number of cases, however, the informant simply becomes the undercover operative, sometimes for months or years at a stretch. The practice has endured for decades, though details have only become available to the public in recent years.

In one of the earliest known examples, an FBI informant covering the Black Panthers helped arm the group prior to its violent conflicts with Oakland, California, police in the 1960s, according to a new book and accompanying story by the Center for Investigative Reporting. The informant, Richard Masato Aoki, was recruited by the FBI when he graduated from high school. Although he had brushes with the law as a troubled youth, he did not become involved in left-wing politics until an FBI agent recruited him to penetrate California communist circles. Aoki did that and more, rising to become a legendary radical activist even as he regularly met with FBI handlers. When the Black Panthers formed, Aoki was there, providing both guns and training on how to use them.

Aoki was not the only member of an extremist group to become prominent under the FBI’s tutelage. During the 1990s, an FBI informant named Vince Reed rose to a top leadership position in the white-supremacist Aryan Nations organization. Reed had always dreamed of being a law enforcement officer, but an injury disqualified him from working on the street, according to his former FBI handlers. Instead, Reed became a professional informant, monitoring the Hells Angels for the FBI after being recruited into the gang in prison.

When that assignment ended, he infiltrated the Aryan Nations, a group with which he had no prior affiliation (a swastika tattoo left over from his biker days helped). The FBI invested considerable resources, including multiple undercover operations, in support of his efforts, and Reed served for years before testifying against some of the group’s members in 1996.

Such cases are not representative of the vast majority of informants, a label that can be applied to almost anyone who provides information on an investigation. The overwhelming majority of informants fall into noncontroversial categories. Some are paid for information; others receive leniency regarding their own criminal behavior. Many informants are simply good people who happen to live next door to bad people.

"They’re the prototypical good citizen who’s going to take some personal risk in order to make sure their community is safe," says German.

That’s an apt description of Karen Wister-Kearns, an informant in the traditional sense — found, not made. After the 1995 Oklahoma City bombing, the FBI recruited her to collect information on her neighbor, white supremacist Mark Thomas, an Aryan Nations preacher sporting a Hitler mustache who held white-power rock concerts at his rural Pennsylvania farm as a tool to recruit skinheads and neo-Nazis into the world of organized racism.

"I would receive phone calls. ‘Could you drive up to [Thomas’s] compound and see if there’s a particular vehicle with out-of-state license plates?’" Wister-Kearns recalls. "They would always end it with: ‘Don’t do anything that puts you in danger.’"

To gain more insight, Wister-Kearns served as an intermediary in a child-custody dispute in which Thomas was embroiled, but her unpaid role was limited to passive collection of information. She informed, but didn’t get involved in her target’s world. (Thomas was arrested in 1997 and pleaded guilty to using cash from bank robberies to finance white-supremacist causes.)

While most informants do their jobs the same way, some are asked to play a more active role. These operational informants can have a disproportionate impact, taking part in multiple investigations over long time periods and playing a role that much more closely resembles that of an agent than that of a concerned citizen.

One paid informant, who asked not to be named, contacted the FBI in the early 1990s after hearing longtime associates discuss a planned anti-government crime. He was recruited to monitor them over the long term and proved so reliable he received additional assignments involving white supremacists and other extremists.

Although he came to the FBI for all the right reasons, the informant was soon employed full time as a kind of utility player, spending most of his time on his duties and performing tasks that would have been prohibited for an undercover agent.

"The things I could do that they couldn’t do was I could go around and make a mess of people’s houses," he said in an interview. "I could be nosy to where they couldn’t be nosy without a warrant."

The informant was not specifically instructed to break the law, but he never received any coaching on the legal limits of a search. Instead, his handlers made what he characterized as "suggestions" about what they wanted to know. As long as he reported back with answers, no one ever commented on his methods.

Searches by the informant — and other informants from that period, according to former FBI agents — were not restricted to the "plain view doctrine," which under the Fourth Amendment allows law enforcement to seize items left out in the open and observed under normal, lawful circumstances.

Instead, informants looked in drawers, closets, sheds, and hiding places. These searches, which multiple sources referred to as "snooping and pooping," could involve scouting the location of weapons or explosives in a suspect’s home prior to a raid. But often, they were exercises in intelligence gathering. Anything that might be interesting in a suspect’s home was noted and reported.

"Nobody ever told me nothing about the Fourth Amendment or anything else," the informant said. "I could go in and do those things because I wasn’t a sworn officer."

Searches aren’t the only gray area for professional informants.

Dennis Mahon was a big-talking white supremacist who moved in some of the same circles as Thomas and even Oklahoma City bomber Timothy McVeigh. During the 1990s, Mahon’s girlfriend — a blond bombshell sporting a swastika tattoo — was recruited to inform on him to the Bureau of Alcohol, Tobacco and Firearms (ATF). Her reporting never led to his arrest, but investigators retained one crucial piece of information: Mahon had a fatal weakness for women, especially if he thought he had a shot at sex.

In late 2004, the ATF decided it needed another informant next to Mahon, but this time she would be made, not found.

According to the Arizona Republic, ATF agent Tristan Moreland recruited Rebecca Williams, a former stripper with no criminal record and no previous connection to Mahon or white supremacy. Moreland preferred to "cast" his informants like a Hollywood director, rather than work with what he found, the newspaper reported.

By all accounts, Williams’s motives for taking part in the investigation were pure. Her father and an uncle had been in law enforcement. "I kind of wanted to be a cop," she told the Republic.

Williams became, for all intents and purposes, a paid employee of the ATF. But because she was classified as an informant, she was not subject to the same scrutiny and regulation that would tie the hands of a trained undercover agent.

Much of her work was standard fare, flirting and talking with Mahon and getting him to open up (often on tape) about the 2004 mail-bombing of an Arizona diversity official, a case that Moreland was investigating. Mahon was ultimately convicted, based in significant part on Williams’s testimony and recordings.

On one such video recording, Mahon lay naked in bed while talking with Williams, who ultimately put a towel over the camera to obscure what happened next.

Williams denied having sex with Mahon. Prosecutors claimed that "there was no use of sex to obtain evidence," which was not quite the same thing as saying, "There was no sex." Mahon’s attorney asserted in closing arguments that Williams had slept with Mahon, though in an email interview she stipulated that "at the risk of sounding like President Clinton, it depends on how one defines ‘sex.’"

Another counterterrorism case where the question of sex entered the scene involves Craig Monteilh, a paid FBI informant who says he was tasked to search for possible terrorist sympathizers among mosques in Orange County, California, where he pretended to convert to Islam to gain access.

Monteilh said he approached the job with considerable enthusiasm, taping hours of religious and cultural events before going public with a series of alarming, and often contradictory, stories about his misadventures, which are the centerpiece of an ongoing lawsuit against the FBI by southern California Muslim organizations.

In March, Monteilh claimed his FBI handlers had given him explicit permission to have sex with Muslim women in the community as part of his infiltration. An undercover law enforcement officer would be subject to severe disciplinary action for having sex with a target.

"Big problem. You’d get fired, and there’d be criminal prosecution as well," says David Gomez, a former FBI agent who spent years investigating domestic terrorism. "The sex itself is not criminal, but depending on the outcome and what the court says, it would be very bad."

Even though Monteilh was not an agent, his handlers could still be on the hook for his activities — but likely only if they explicitly told him to do it.

"There are degrees of participation, and it depends on how much you’re acting on the direction of the FBI," Gomez explains. "In other words, if the FBI directed you to have sex with somebody and you had sex with them, the FBI would be liable for that."

Monteilh’s blizzard of claims are best taken with a large grain of salt, at least until they are resolved in court, but other sources have raised questions about his behavior. Monteilh was so zealously militant that some of his targets informed on the informant, voluntarily reporting his "jihad talk" to the FBI.

Such aggressive plays in the post-9/11 era have come under heavy scrutiny. Shahed Hussain is a Pakistani national who made tens of thousands of dollars working as a professional informant for the FBI in an unknown number of investigations on at least three continents since 2002. His work became the center of controversy in 2011 during the trial of four U.S. citizens for a synagogue bombing plot two years earlier in New York.

Once again, the informant had no prior connection to the subjects of his investigation. Hussain showed up at the local mosque and probed for anyone who would join him in radical talk. He eventually "revealed" himself as a flush terrorist financier and threw money around liberally to prove it. In a key exchange, Hussain offered $250,000 to one of the suspects, James Cromitie, who was wavering about taking part in the bombing.

"That case wasn’t a terrorism plot. It was a murder-for-hire case," says the ACLU’s German. "If I get $250,000, I guarantee you I can find a lot of people willing to do a lot of really horrible things."

During sentencing, U.S. District Judge Colleen McMahon also excoriated the FBI’s handling of the investigation.

"The essence of what occurred here is that a government, understandably zealous to protect its citizens from terrorism, came upon a man both bigoted and suggestible, one who was incapable of committing an act of terrorism on his own," McMahon said, adding at a different point in the proceeding, "Only the government could have made a terrorist out of Mr. Cromitie."

But for all her harsh language, McMahon conceded that the men were indeed guilty of committing crimes and sentenced them each to 25 years in prison.

Similar concerns were raised in the case of Rezwan Ferdaus, a Massachusetts man arrested in 2011 who believed he was part of a terrorist cell plotting to bomb the Pentagon. Everyone else in his "cell" worked for the government, including two undercover agents and an informant with a heroin problem. During bail proceedings, his attorneys tried to impeach the informant’s credibility based on drug use, but their arguments fell on deaf ears. Ferdaus pleaded guilty in July and faces 17 years in prison.

Therein lies the rub. In the vast majority of cases, the government’s use of professional informants has stood up in court, year after year and case after case. For the most part, these tactics withstand the legal test, and the courts have substantial power to correct excesses when they occur. Perhaps the more important question is whether these tactics are desirable and whether Americans will continue to accept them.

What’s fair play?

Should law enforcement officials be able to employ virtual agents who can skirt restrictions that would tie the hand of sworn officers? Is it acceptable for professional informants to use sex to establish themselves with suspects? Is it fair to prosecute someone whose path toward terrorism is shepherded, prodded, cajoled, and financed at every stage of the plot?

"You come to a situation where a person has indicated they want to do something, perhaps something illegal, but has taken no actual steps to accomplish that until the government arrives in the guise of Santa Claus," says the ACLU’s German. "It has a bag full of treats that can help the plot along, when the person actually made no effort to do it themselves. And it puts them in the strange position of saying, ‘Do I embarrass myself by saying I didn’t really mean it, or do I go along?’"

The informant who "snooped and pooped" among white supremacists during the 1990s believed at the time that his work was justified, to keep someone from getting hurt or stop bombs from going off.

"Years ago, I thought it was fair play," he says. "But nowadays I look at things a little differently than I did back then."

He eventually became frustrated with the inconsistency of the Justice Department’s prosecution of his targets. Over time, he came to see his efforts as intelligence-gathering without clear limits.

One thing was clear, however — the contract the FBI asked him to sign, many months after he was put on the payroll. The document, variations of which are still used with informants today, made the informant responsible for whatever he did in the course of his work. It also stipulated that the full-time, paid informant was "not an employee, partner, member of a joint venture, associate, or Agent of the FBI."

He was simply a concerned citizen, who took "suggestions" and received a regular paycheck, for the better part of a decade.